Montezuma Canal Company v. Smithville Canal Company

• Decision Date: 08 November 1909
• Docket Number: No. 1,1
• Citation: 218 U.S. 371,54 L.Ed. 1074,31 S.Ct. 67
• Parties: MONTEZUMA CANAL COMPANY, Appt., v. SMITHVILLE CANAL COMPANY et al
• Court: U.S. Supreme Court

218 U.S. 371

31 S.Ct. 67

54 L.Ed. 1074

MONTEZUMA CANAL COMPANY, Appt.,

v SMITHVILLE CANAL COMPANY et al.

No. 1.

Submitted November 8, 1909.

Ordered for oral argument May 16, 1910.

Argued October 21 and 24, 1910.

Decided November 28, 1910.

Messrs. John J. Hawkins, Thomas Armstrong, Jr., and C. L. Rawlins for appellant on original submission.

Mr. Thomas Armstrong, Jr., for appellant on oral argument.

Mr. Walter Bennett for appellees.

Mr. Justice White, delivered the opinion of the court:

The decree of the supreme court of the territory of Arizona (11 Ariz. 99, 89 Pac. 512), which is appealed from, affirmed a decree of a district court of the territory, determining the rights of appropriators within the county of Graham to the waters of the Gila river.

In the brief of counsel for the appellee it is suggested that the appeal should be dismissed because the matter in dispute does not exceed the sum of $5,000, and because the appellant has no substantial financial interest in the cause. We think, however, that the record sufficiently shows that the jurisdictional amount is involved, and that the appellant has such interest as entitles it to prosecute the appeal. We shall, therefore, consider the case upon the merits.

The issues below were made up by an amended complaint, in which the Smithville Canal Company and the Central Canal Company and the water users under these canals were plaintiffs, and the Montezuma Canal Company and other canal companies, as also the water users under such canals, were defendants. The general nature of the controversy is indicated by the character of the decree entered in the district court, just stated. Incorporated in the answer of the Montezuma Canal Company and its water users were averments in the nature of a cross bill against the San Jose Irrigating Company and the San Jose Extension Canal Company and various other defendants, setting up a former judgment recovered in the district court of Graham county by the Montezuma Canal Company, as settling between the Montezuma Company and said codefendants rights in the water of the river. The San Jose Irrigating Company, it is to be remarked, was incorporated in 1892, and in 1904 the San Jose Extension Canal Company was incorporated, and undertook the management, repair, and operation of a part of the canal previously under the control of the San Jose Irrigating Company.

The trial court made findings of fact and stated conclusion of law thereon, but certified no rulings in respect to the admission or rejection of evidence. The supreme court of the territory made no express findings of fact, but entered a general judgment of affirmance, manifestly based upon the correctness of the findings of the trial court. Under such circumstances the findings of the district court furnish a sufficient statement of the facts for the purposes of this appeal. Stringfellow v. Cain, 99 U. S. 610, 25 L. ed. 421. The question for decision, therefore, is whether such findings are sufficient to support the decree. Ibid.

We are concerned, however, only with the error assigned by the Montezuma Canal Company, as that company alone appealed to the supreme court of the territory, and it is the only party to the record now seeking a reversal of the judgment of affirmance entered by the appellate tribunal.

The contentions urged by the Montezuma company are twofold: First, that due effect was not given to the prior judgment which it pleaded, and which determined its rights in the water of the Gila river as against the appropriators of waters from that river at points above the head of its canal; and, second, that error was committed in the appointment of a so-called water commissioner, charged with the duty of distributing the water among the different canals, according to the adjudged priorities. There being, then, no controversy in respect to the rights to water decreed in favor of the canals situated below the head of the Montezuma Canal Company, the findings in respect to those canals need not be particularly referred to.

Before stating the contents of the decree which was entered in the trial court, we make a condensed statement of the facts embodied in the findings upon which the decree was based, in order to a comprehension of the controversey arising for determination.

There are 23,728 acres of land in the county of Graham, territory of Arizona, which are irrigated by water diverted from the Gila river by means of twenty-five ditches or canals. These canals extend from a point in section 29, township 6 south, range 28 east, at first in a southwestwardly and then in a northwestwardly direction, to a point 41 miles distant at the northeast corner of the southeast quarter of section 35, township 4 south, range 23 east. Commencing with the head of this irrigation system the canals in question, in their order as respects the flow of the waters of the river and the number of acres irrigated by each canal, are as follows: Brown, 100 acres; Sanchez, 400 acres; Mejia, 320 acres; Fourness, 260 acres; San Jose, 3,000 acres; Michelena, 450 acres; Montezuma, 3,750 acres; Union, 2,900 acres; Sunflower, 400 acres; Graham, 962 acres; Central, 2,675 acres; Oregon, 1,100 acres; Smithville, 1,760 acres; Bryce, 515 acres; Dodge, 450 acres; Nevada, 800 acres; Curtis, 800 acres; Kempton, 850 acres; Reid, 100 acres; Ft. Thomas, 960 acres; Thompson, 240 acres; Military, 400 acres; Saline, 46 acres; Zeckendorf, 50 acres. The Montezuma canal was first constructed. The six canals situated above the head of that canal were constructed as follows: The San Jose and the Michelena in 1874, the Mejia in 1877, the Sanchez in 1883, the Fourness in 1891, and the Brown in 1896. The first canal below the Montezuma is called the Union, and was constructed in 1879. Among other things it was found that the Union canal 'carries water for 100 acres that were reclaimed in 1874, and irrigated by water that was then diverted from the river and carried to the land by the Montezuma canal. . . .'

Embodied in the 'conclusions of law' made by the court is a statement that William Ellsworth and other named individuals 'were the persons or successors in interest to the persons who, in 1875, appropriated water for and applied it to the first 300 acres of land' in certain named sections, 'and who are diverting and carrying water thereto through the San Jose cannal. . . .'

One half of a miner's inch per acre was found to be necessary for the irrigation of the lands served by the various canals. It was further found that a surface flow of 7,500 miner's inches in the Gila river at the head of the irrigation system furnished more water than is needed to irrigate the entire acreage shown by the evidence to have been in cultivation in the year 1904; and it was also found that 'there is a greater flow than this amount during the larger part of the year, so that the amount of water available for irrigation purposes is more than one half of a miner's inch per acre for a greater length of time each year than the time during which the supply is less than one-half inch per acre.'

Substantially all of the canals referred to are now controlled by incorporated canal companies, respecting whom the trial court found as follows:

'The different incorporated canal companies, who are parties plaintiff and defendant herein, are duly and regularly incorporated under the laws of this territory, and own and control the several canals, as alleged in the pleadings herein, which canals were originally operated by unincorporated partnerships or societies, and the present corporations, parties hereto, are the successors to the unincorporated owners of the several canals, and are in every instance carrying the water for the use of the landowners or the successors in interest of the landowners who were the original appropriators of the water carried therein for irrigation purposes. None of the parties hereto have been engaged or are now engaged in carrying water for hire, and none of the incorporated companies, parties hereto, have appropriated any water in their corporate capacity. None of the several parties hereto who are landowners, appropriators of water, or who are receiving water for irrigation from the different incorporated companies or through the several canals owned by the parties hereto, have ever maintained their right to their several priorities as against the coowners of land or cousers of water in their respective canals, but the individual landowners and appropriators of water that is furnished under the management of each of the several ditches or canals, herein referred to have surrendered to their cousers in that canal their priority, and the water that is taken from the river for the use of the land under the several canals has been, by the consent of the different landowners under each canal, delivered to the different tracts of land in accordance with the extent of the interest in the ditch or canal of each landowner, regardless of the acreage cultivated by the said landowner, and regardless of the date when the said acreage was placed under cultivation.'

Findings 11 and 12 are as follows:

'11. On the 17th day of February, 1897, a decree was entered in this court in action No. 505, wherein the Montezuma Canal Company was plaintiff, the San Jose Irrigating Company, a corporation, Chiricahua Cattle Company, a corporation, Pedro Michelena and others, were defendants, wherein it was judged and decreed that the plaintiff had the right and was entitled to have flow into the Montezuma canal continuously from the Gila river at all times during the dry season of the year when water is low and scarce in said river, 1,000 miner's inches of water, and was entitled to have flow from the said river into said canal 2,000 miner's inches of water at times of wet seasons of the year, when water is high and plentiful therein, as against each and all of the defendants in said action, and in which it was ordered,...